Trinity Term

[2013] UKSC 58
On appeal from: [2012] CSIH 23

JUDGMENT

McGraddie (Appellant) v McGraddie (AP) and

another (AP) (Respondents) (Scotland)

before

Lord Neuberger, President

Lady Hale, Deputy President

Lord Wilson

Lord Reed

Lord Hughes

JUDGMENT GIVEN ON

31 July 2013

Heard on 10 July 2013

 Appellant Respondent
Andrew Smith QC The Lord Davidson of
Glen Clova QC
Jonathan Brown Eric Robertson
(Instructed by McClure (Instructed by Balfour &
Naismith LLP) Manson)

Respondent
Richard Keen QC
Stuart Buchanan
(Instructed by HBM
Sayers)
LORD REED (with whom Lord Neuberger, Lady Hale, Lord Wilson and
Lord Hughes agree)

1. In the sets of Session Cases in the Advocates Library, the volumes for 1947
fall open at Thomas v Thomas 1947 SC (HL) 45; [1947] AC 484, where one finds
in the speech of Lord Thankerton at pp 54 and 487-488 what may be the most
frequently cited of all judicial dicta in the Scottish courts:

(1) Where a question of fact has been tried by a judge without a

jury, and there is no question of misdirection of himself by the judge,
an appellate court which is disposed to come to a different
conclusion on the printed evidence should not do so unless it is
satisfied that any advantage enjoyed by the trial judge by reason of
having seen and heard the witnesses could not be sufficient to
explain or justify the trial judge's conclusion. (2) The appellate court
may take the view that, without having seen or heard the witnesses, it
is not in a position to come to any satisfactory conclusion on the
printed evidence. (3) The appellate court, either because the reasons
given by the trial judge are not satisfactory, or because it
unmistakably so appears from the evidence, may be satisfied that he
has not taken proper advantage of his having seen and heard the
witnesses, and the matter will then become at large for the appellate
court.

2. The principles stated in Thomas v Thomas had, even then, long been settled
law: the speech of Lord Shaw of Dunfermline in Clarke v Edinburgh & District
Tramways Co Ltd 1919 SC (HL) 35, 36-37, where he said that an appellate court
should intervene only it is satisfied that the judge was plainly wrong, is almost
equally familiar. Accordingly, as was said by Lord Greene MR in Yuill v Yuill
[1945] P 15, 19, in a dictum which was cited with approval by Viscount Simon
and Lord Du Parcq in Thomas at pp 48, 62-63, 486 and 493 respectively, and by
Lord Hope of Craighead in Thomson v Kvaerner Govan Ltd [2003] UKHL 45;
2004 SC (HL) 1, para 17:

It can, of course, only be on the rarest occasions, and in

circumstances where the appellate court is convinced by the plainest
of considerations, that it would be justified in finding that the trial
judge had formed a wrong opinion.

Page 2
3. The reasons justifying that approach are not limited to the fact, emphasised
in Clarke and Thomas, that the trial judge is in a privileged position to assess the
credibility of witnesses evidence. Other relevant considerations were explained by
the United States Supreme Court in Anderson v City of Bessemer 470 US 564
(1985), 574-575:

The rationale for deference to the original finder of fact is not

limited to the superiority of the trial judges position to make
determinations of credibility. The trial judges major role is the
determination of fact, and with experience in fulfilling that role
comes expertise. Duplication of the trial judges efforts in the court
of appeals would very likely contribute only negligibly to the
accuracy of fact determination at a huge cost in diversion of judicial
resources. In addition, the parties to a case on appeal have already
been forced to concentrate their energies and resources on
persuading the trial judge that their account of the facts is the correct
one: requiring them to persuade three more judges at the appellate
level is requiring too much. As the court has stated in a different
context, the trial on the merits should be the main event rather
than a tryout on the road. For these reasons, review of factual
findings under the clearly erroneous standard - with its deference to
the trier of fact - is the rule, not the exception.

Similar observations were made by Lord Wilson in In the matter of B (a Child)

[2013] UKSC 33; [2013] 1 WLR 1911, para 53.

4. Furthermore, as was stated in observations adopted by the majority of the

Canadian Supreme Court in Housen v Nikolaisen [2002] 2 SCR 235 at para 14:

The trial judge has sat through the entire case and his ultimate
judgment reflects this total familiarity with the evidence. The insight
gained by the trial judge who has lived with the case for several
days, weeks or even months may be far deeper than that of the Court
of Appeal whose view of the case is much more limited and narrow,
often being shaped and distorted by the various orders or rulings
being challenged.

5. While the law is not in doubt, its application has been inconsistent. From
time to time it has proved necessary for its application to be considered at the
highest level, in Scotland as in other jurisdictions.

Page 3
6. In the present case, Clarke and Thomas were cited in the opinion of the
Extra Division ([2012] CSIH 23) in the time-honoured fashion. Counsel for the
appellant however began his submissions by reminding the court of the words of
Lord Hope in the case of Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004
SC (HL) 1 at para 16:

The rule which defines the proper approach of an appellate court to

a decision on fact by the court of first instance is so familiar that it
would hardly be necessary to repeat it, were it not for the fact that it
appears in this case to have been overlooked.

Whether there has indeed been a failure to follow the proper approach is the issue
which this court has to decide.

The background circumstances

7. Lord President Dunedin remarked of the facts of Brownlees Executrix v

Brownlee 1908 SC 232 that the story seemed more like the closing scenes of the
life of Pre Goriot than the history of a middle class family in Glasgow. The
present case prompts similar reflections.

8. The pursuer and his wife left Scotland many years ago and lived in the
United States. They had two sons: Rodger, the first defender, and Daniel, from
whom they had long been estranged. The first defender lived in Scotland with his
partner, the second defender, and their son, Richard. In 2005 the pursuers wife
became terminally ill, and she and the pursuer decided to return to Scotland. They
asked the first defender, who is a property developer, to find a suitable property for
them, and he did so, finding a newly-built flat in St Helens Gardens, Glasgow.
The pursuer transferred the funds required to purchase the property into the first
defenders bank account, and the first defender made the arrangements for the
purchase and the conveyancing. Unknown to the pursuer, he arranged for the title
to the property to be taken in his own name as proprietor.

9. The pursuer and his wife moved into St Helens Gardens on 1 January
2006. She died six days later.

10. In February 2007 the pursuer gave the first defender a cheque in his favour
for 285,000. The reason for his doing so is in dispute, as I shall explain. The first
defender paid the cheque into a bank account. He and the second defender then
used about 200,000 from the account, together with 90,000 raised by way of
mortgage, to buy a newly-built house in Lochrig Court, Stewarton, taking title in
Page 4
their own names. They spent the balance of the 285,000 on cars, the repayment of
debts, the decoration of their existing house in Glasgow in preparation for its sale,
and on finishings for the house in Lochrig Court.

11. Later in 2007 the pursuer began the present proceedings, in which he sought
a number of remedies, including the conveyance of the properties in St Helens
Gardens and Lochrig Court to himself. In his pleadings, he maintained that the first
defender had acted without his authority in taking title to the properties in his own
name, in the case of St Helens Gardens, or in his and the second defenders
names, in the case of Lochrig Court. In response, the first defender maintained that
the pursuer had instructed that title to St Helens Gardens was to be taken in his
(the first defenders) name; and he and the second defender maintained that the
285,000 had been a gift.

The Lord Ordinarys Opinion

12. In an opinion on the substantive issues in the case ([2009] CSOH 142)
which, if I may respectfully say so, seems to me to have been careful and fair, the
Lord Ordinary, Lord Brodie, summarised the salient points in the evidence and
then set out his assessment of the witnesses. It is clear that he found none of the
principal witnesses entirely satisfactory. That is of course a familiar situation,
perhaps especially in cases concerned with family disputes.

13. Nevertheless, the Lord Ordinary considered that the pursuer was a
confident witness, capable of being firm and even robust in the face of cross-
examination, and that there was an energy in his responses that had an air of
conviction about it. He acknowledged that the pursuers evidence lacked much
in the way of specifics or circumstantial detail in relation to the second
transaction and that he had forgotten some matters. The pursuer also appeared to
contradict himself as to why he had paid 285,000 (rather than some other figure)
to the first defender:

At one point he indicated that this was the price that he had been
advised by the builder's sales representative. At other points he
emphasised that this was the price that the first defender had told him
was required for the purchase of the property.

Nevertheless, the Lord Ordinary stated:

On the central issue of whether the pursuer had made two

substantial gifts to the first and second defenders, the demeanour of
Page 5
 the pursuer and the content of his answers to questions did not
suggest someone who was telling other than the truth.

As to the pursuers character, the Lord Ordinary discerned nothing to suggest that
the pursuer would be particularly generous.

14. The Lord Ordinarys assessment of the first defender was markedly
different:

The content of the first defenders evidence and the manner in

which he gave it raised sharp questions as to whether he was a
witness in whom the court could have confidence.

The first defenders presentation in the witness box was indeed such that, after he
had given evidence, his counsel sought to amend the pleadings so as to aver that
the first defender had an autistic spectrum disorder. The Lord Ordinary described
the first defenders presentation as casual, even when talking about his mothers
terminal illness. He appeared to have felt an antipathy towards the pursuer from a
time preceding the events in question. He described his own reaction to his
mothers wish that family assets should go to Richard: I said, What do I get? He
was always the golden-eyed boy. He did not always seem to understand his
counsels questions, and at points his presentation suggested that his abilities might
be impaired by medication, although there was no reason to believe that he was in
fact taking medication.

15. In relation to the first transaction, the first defender gave conflicting
evidence on the question whether the pursuer had given him an instruction that
title to St Helens Gardens should be taken in his name. Perhaps more importantly,
the Lord Ordinary stated:

I was left with the impression that the first defender did not fully
appreciate the central importance of the pursuer's wishes in the
matter and whether the pursuer had communicated his wishes to him.
Indeed, he seemed to suggest that the pursuer's wishes were
irrelevant.

The Lord Ordinary stated that he ascribed this to a complete inability to come to a
view as to what would be reasonable in particular circumstances.

Page 6
16. The Lord Ordinary concluded that the first defender was not a witness
upon whom I could rely. The matter went however beyond the credibility of the
first defenders evidence. The Lord Ordinary added:

This is particularly so when it came to his accounts of interactions

with other people and the inferences to be drawn from these
interactions. To an extent this case is about the reasonable
interpretation of what was said and done in a particular social
context. I have no confidence in the first defenders ability to come
to such a reasonable interpretation.

In other words, not only could the first defenders evidence in court not be relied
upon, but even outside the court he could not be relied upon to have understood
and acted upon what the pursuer had said to him.

17. The Lord Ordinary was less forthright in relation to the second defender,
but nevertheless made clear his reservations. He gave two reasons for doubting her
credibility. First, he noted that both she and the first defender departed in their
evidence from the account, given in their averments, that the pursuer had
suggested that the cheque should be used to buy the house at Lochrig Court and
had reserved the house with the builders: an account which could only have been
based upon precognition. Secondly, he noted that she gave confident evidence
about an aspect of the new account of events, only to alter her account when
confronted unexpectedly with documents which demonstrated that her earlier
evidence could not be correct.

18. The Lord Ordinary concluded that Richard, who had been diagnosed with
Aspergers Syndrome, was an honest but not necessarily reliable witness. It was
not clear that he was able clearly to distinguish between what he believed to be the
case and what he knew from his own experience. In very large part he was
recounting what he had been told by his parents. The Lord Ordinary regarded his
evidence as adding little or nothing.

19. In relation to St Helens Gardens, the Lord Ordinary accepted that the first
defender had taken title to the property without any instructions to do so, and in the
absence of any indication that the pursuer intended to make him a gift of the
property.

20. In relation to Lochrig Court, the Lord Ordinary observed that the accounts
of the parties were diametrically apart, and that each side accused the other of
lying. He stated that he had regard to [what] might be seen as the inherently

Page 7
unlikely nature of the deceit which the pursuer alleges was practised upon him by
the defenders, in that the defenders could hardly conceal from him their
occupation of Lochrig Court. He stated that there is also the point that it is not
entirely clear why the pursuer should have found it necessary, after having been re
established in Scotland for a year, to employ the first defender to arrange for the
purchase. On the other hand, it was not in doubt that the first defender had been
so employed in connection with St Helens Gardens. On that occasion, the first
defender had acted in breach of trust in taking title to the property in his own
name. That was relevant to the question whether he had also acted dishonestly in
connection with Lochrig Court. The critical consideration however was the
credibility of the principal witnesses:

Critically, there is the question of whose evidence I find more likely

to be credible and reliable. For the reasons given I prefer the
pursuer over both the first and the second defender.

The Lord Ordinary added:

I do not find any of the other evidence materially to undermine the

specifics of the pursuers account or his evidence more generally.

21. In a subsequent opinion ([2010] CSOH 60) the Lord Ordinary dealt with the
question of the appropriate remedies.

The Opinion of the Extra Division

22. In the Inner House, the first defender did not contest the Lord Ordinarys
findings and conclusions in relation to St Helens Gardens. The challenge was
directed to the findings and conclusions relating to Lochrig Court.

23. The opinion of the Extra Division, delivered by Lady Paton [2012] CSIH
23, took as its starting point the Lord Ordinarys statement that he did not find any
of the other evidence materially to undermine the pursuers account. The Extra
Division then proceeded to identify a number of aspects of the evidence which
they regarded as materially undermining the pursuers account. They concluded,
on that basis, that the Lord Ordinary went plainly wrong when he stated that he
did not find any of the other evidence materially to undermine the specifics of the
pursuers account or his evidence more generally. On that basis, they concluded
that they were entitled to overturn his decision and to substitute their own decision.
In that regard, they relied on the same aspects of the evidence as supporting the

Page 8
defenders account and accordingly establishing, on a balance of probabilities, that
the pursuer had made a gift of 285,000 to the first defender.

24. The aspects of the evidence which were considered to undermine the
pursuers account, and to support the defenders, were the following:

1. By February 2007, the pursuer had been living in Scotland for

over a year. He was well able to choose his own home, and to
instruct a lawyer. It is less clear why, in these circumstances, he
would delegate the choice and purchase of a new home to his son.

2. Furthermore the pursuer had never been in the house at 6

Lochrig Court at any time, either before or after the purchase. He
had seen only the show house.

3. As for the purchase itself, the sum required for settlement on 13

April 2007 was 290,768.89. In our view it is significant that, on
the evidence available, it is not possible to reconcile the figure of
285,000 with the ultimate settlement figure of 290,768.89.

4. It is also of significance that the pursuer gave two explanations as

to why the cheque was for a figure of 285,000. At first he stated
that 285,000 was what the builders wanted. Later however he said
that it was his son who told him that the end figure of 285,000
was needed to buy the house.

5. Once the house at Lochrig Court had been purchased, the pursuer
made no attempt to move in and live there. It was the defenders
and their teenage son Richard who began to occupy Lochrig Court in
about May 2007. On the evidence, the pursuer was fully aware that
they had done so, and did nothing to try to prevent or challenge that
development.

6. The defenders spent the 285,000 in a quite open and uninhibited

manner. Such behaviour was, in our view, wholly inconsistent
with a surreptitious scheme whereby the first defender deliberately
disobeyed his father's clear instructions to purchase a home for him
and to take the title in his name.

Page 9
 7. For the defenders and their son openly to occupy Lochrig Court
is again inconsistent with such a scheme, as their occupancy of the
new house could not but arouse suspicions and result in the scheme
being discovered.

8. Perhaps of less significance than the other facts referred to above,

the figure of 285,000 bore a relationship to the nil rate tax level for
inheritance tax at the time the cheque was given.

25. The following comments can be made about these points, taking them in the
same order:

1. The Lord Ordinary expressly considered this point: see para 20 above.

2. The pursuer gave evidence that the show house was the same as the
house. It was never put to him that it was somehow remarkable to buy
a newly built house having seen only the show house, and it is far from
clear why the Extra Division considered it to be implausible. The reality
is that new houses are bought on that basis every day: that is the purpose
of show houses.

3. The Lord Ordinary was well aware of the difference between the
amount paid by the pursuer to the first defender and the final settlement
figure. He considered the matter most fully in his opinion dealing with
remedies [2010] CSOH 60, stating, at para 8:

The selection of the figure of 285,000 came, on the evidence, from

the first defender. He told the pursuer what was needed for the
purchase of 6 Lochrig Court and the pursuer paid over what he was
asked to pay. The pursuer explained that if he had been asked to pay
another sum he would have paid it. The effective discount in the
purchase price due to the seller's meeting the stamp duty obligation
meant that it was by no means obvious that the pursuer should have
appreciated that there was any shortfall as between the purchase
price and what he paid.

That is a complete answer to the point.

4. The Lord Ordinary considered this point: see para 13 above.

5. This point does not accurately reflect the evidence. At one point during
his examination in chief the pursuer was asked if he knew when the

Page 10
 defenders had moved in and answered May, June. His other evidence
suggests that he was referring to the date when entry was taken (which
was in fact 13 April 2007), not to the date when the house began to be
occupied: when asked why he did not move into the house at Lochrig
Court, he answered that it was because it was not ready, as the first
defender wanted to do tiling work. The defenders own evidence was
that they had carried out work on the house after taking entry, and had
not begun to reside there until 2008. It was admitted in their pleadings
that they had been living at their house in Glasgow in September 2007,
when the proceedings commenced. It was never put to the pursuer that
the defenders had moved into Lochrig Court and lived there openly
without challenge from him: unsurprisingly, since no-one suggested that
that was what had happened.

6. This point appears to be equally insubstantial. Since the 285,000 was

less than the cost of completing the transaction, there was no surplus left
over. The funds spent in an open and uninhibited manner were generated
by the defenders raising a mortgage on the property. On the pursuers
evidence, he did not know that they had done so until after he consulted
lawyers: his understanding was that the money he had paid the first
defender had been used in its entirety to buy the house.

7. The Lord Ordinary considered this point: see para 20 above.

8. This point is puzzling. The nil rate band was of no possible significance
to an inter vivos gift: it applies only on death. A gift inter vivos would
be a potentially exempt transfer whatever its amount. Nor was the nil
rate band relevant to the estate of the late Mrs McGraddie, which had
passed to the pursuer and was therefore exempt from inheritance tax. It
might have been relevant if a deed of variation had been entered into,
but there was no such deed, and the nil rate band applicable in that
eventuality would not in any event have been 285,000, Mrs McGraddie
having died during an earlier tax year. Although the defenders gave
evidence that they thought that the gift, as they maintained it to be, had
possibly been motivated by the pursuers desire to minimise inheritance
tax, the pursuers own evidence was that he knew nothing about
inheritance tax planning. The Lord Ordinary considered the inheritance
tax implications and stated that, while they were not to be ignored, he
would not regard them as sufficiently compelling to point to gift as the
most likely underlying explanation for the transaction.

26. The points which had substance were therefore that it was not entirely clear
why the pursuer employed the first defender to arrange for the purchase of Lochrig
Court, that he gave two explanations of where the figure of 285,000 came from,
that he was sooner or later going to discover that the defenders had occupied the

Page 11
house, and (for what it was worth) that a gift of 285,000 would potentially result
in a saving of inheritance tax.

27. Each of those points had been expressly taken into account by the Lord
Ordinary in reaching his conclusion as to the pursuers credibility. Indeed, even if
he had not mentioned them, he would be presumed to have taken the whole of the
evidence into consideration: Thomas v Thomas 1947 SC (HL) 45, 61; [1947] AC
484, 492 per Lord Simonds. In those circumstances, the words of Viscount Simon
in Thomas at pp 47 and 486 are relevant:

If there is no evidence to support a particular conclusion (and this is

really a question of law), the appellate court will not hesitate so to
decide. But if the evidence as a whole can reasonably be regarded as
justifying the conclusion arrived at at the trial, and especially if that
conclusion has been arrived at on conflicting testimony by a tribunal
which saw and heard the witnesses, the appellate court will bear in
mind that it has not enjoyed this opportunity and that the view of the
trial judge as to where credibility lies is entitled to great weight.

28. In a case where the court was faced with a stark choice between
irreconcilable accounts, the credibility of the parties testimony was an issue of
primary importance. The Lord Ordinary found that the pursuer was a credible
witness on the central issue, notwithstanding a number of aspects of the evidence
which could be regarded as detracting from his credibility, including the aspects
mentioned in para 26. The question whether the pursuers evidence was to be
regarded as credible and reliable having regard to the other evidence in the case
was pre-eminently a matter for the Lord Ordinary.

29. The weight of the evidence adverse to the pursuers credibility had of
course to be considered in the context of the evidence as a whole. The Extra
Division however focused solely on those particular aspects of the evidence. There
is no indication in their opinion that they gave any weight to the extent to which
the Lord Ordinarys conclusion was affected by the way in which the principal
witnesses gave their evidence: a matter which the Extra Division were unable to
assess for themselves from the printed record. Yet it is plain, as explained at paras
13-14, that this aspect of the evidence had an important bearing on the Lord
Ordinarys assessment of credibility. There is no indication that they considered
the significance of the Lord Ordinarys assessment of the characters of the pursuer
and the first defender: that the former did not appear to be particularly generous,
while the latter was incapable of coming to a reasonable interpretation of what had
been said and done by other people, and did not appreciate the central importance
of the pursuers wishes in the matter. Those findings had an evident bearing on the
likelihood, on the one hand, of the pursuers having made a gift of 285,000, and
Page 12
on the other hand of the first defenders having acted contrary to the pursuers
instructions. There is no indication that they considered the significance of the
unchallenged finding that the first defender had acted in breach of trust in relation
to the purchase of St Helens Gardens: a finding which evidently bore on the
likelihood of his having done so again when a second opportunity presented itself.
Nowhere in their opinion did they subject the evidence of the defenders to the
checking against other evidence which they carried out in relation to the evidence
of the pursuer.

30. Furthermore, the thrust of the Extra Divisions criticism appears to be that,
since the Lord Ordinary said that he did not find any of the other evidence
materially to undermine the pursuers account, it follows that he must have
failed to appreciate the weight or bearing of the aspects of the evidence on which
the Extra Division focused their attention. Whether that is so depends however on
what he meant by other evidence: earlier in the same paragraph of his judgment,
he had mentioned all of the points summarised in para 26 above, other than the two
explanations of where the figure of 285,000 had come from. It also depends on
what he meant by materially: the implication is that the pursuers account might
have been undermined to some extent, but not to an extent which the Lord
Ordinary considered material. No useful purpose would however be served by
pursuing these questions: the important point is that the Lord Ordinary had plainly
taken the evidence in question into account and had nonetheless concluded that the
pursuer was telling the truth about the central issue. It is necessary to bear in mind
the point made by Lord Hoffmann, in a different but related context, in Piglowska
v Piglowski [1999] 1 WLR 1360, 1372:

The exigencies of daily court room life are such that reasons for
judgment will always be capable of having been better expressed.
An appellate court should resist the temptation to subvert the
principle that they should not substitute their own discretion for that
of the judge by a narrow textual analysis which enables them to
claim that he misdirected himself.

31. In support of their approach, the Extra Division cited the decision of the
Second Division in Hamilton v Allied Domecq plc [2005] CSIH 74; 2006 SC 221,
subsequently affirmed by the House of Lords [2007] UKHL 33; 2007 SC (HL)
142, and said that the test set out in that case had been met. That case was however
concerned with a completely different issue from the present case. It was a case
where the Lord Ordinary had made a critical finding, as to the making of a
negligent misrepresentation, which the relevant passages in the evidence did not
support. In those circumstances, the appellate court was plainly entitled to
interfere: see the first sentence of the dictum of Viscount Simon in Thomas, cited
in para 27 above. That was the context of Lord Hamiltons observation at para 85
of his opinion:
Page 13
 On the other hand, when, on examination by the appellate court of
the printed evidence, it is plain that it could not constitute a proper
basis for some primary finding of fact made by the judge of first
instance, the appellate court has a power and a duty to reverse that
finding. If findings of fact are unsupported by the evidence and are
critical to the decision of the case, it may be incumbent on the
appellate court to reverse the decision made at first instance.

That observation had no relevance to the present case.

32. Finally, at the hearing of the present appeal counsel for the defenders
sought to persuade the court that the Lord Ordinary had in any event made a
critical error in failing to give greater weight to the evidence of the defenders son
Richard. As explained at para 18 above, the Lord Ordinary described Richard as
largely recounting what he had been told by his parents, and as adding little or
nothing to the case. That assessment is borne out by the passages in his evidence to
which the court was referred, almost all of which recounted what he had been told
by his parents, or his interpretation of events in the light of what he had been told.

33. In the whole circumstances, the Extra Division had no proper basis for
concluding that the Lord Ordinary had gone plainly wrong, let alone that on a re
consideration of the whole evidence the opposite conclusion should be reached.
The case illustrates an important point made by Iacobucci and Major JJ, delivering
the judgment of the majority of the Canadian Supreme Court in Housen v
Nikolaisen [2002] 2 SCR 235, para 14, when explaining why appellate courts are
not in a favourable position to assess and determine factual matters:

Appeals are telescopic in nature, focussing narrowly on particular

issues as opposed to viewing the case as a whole.

Conclusion

34. I would accordingly allow the appeal and invite parties to make
submissions as to the appropriate form of order.

Postscript: the reasonableness of the appeal

35. There was some discussion in the printed cases of the question whether the
appeal had properly been certified as reasonable. It is true that the relevant legal
principles have long been settled. Nevertheless, the failure by appellate courts to

Page 14
apply those principles correctly may raise a point of law of general public
importance. There have been a number of recent Scottish appeals to the House of
Lords in which the application of the relevant principles has been considered: they
include Thomson v Kvaerner Govan Ltd [2003] UKHL 45; 2004 SC (HL) 1,
Simmons v British Steel plc [2004] UKHL 20; 2004 SC (HL) 94; [2004] ICR 585
and Hamilton v Allied Domecq plc [2007] UKHL 33; 2007 SC (HL) 142. There
have also been recent cases in this court (eg In the matter of B (a Child) [2013]
UKSC 33; [2013] 1 WLR 1911) and in the Judicial Committee of the Privy
Council (eg Mutual Holdings (Bermuda) Ltd v Hendricks [2013] UKPC 13) where
permission to appeal was granted in relation to issues concerning the role of
appellate courts in respect of findings made by the trial judge. I have also referred
to recent judgments of the Canadian and United States Supreme Courts in which
the relevant principles were re-stated. In the circumstances of the present case, I
would not criticise the bringing of the appeal.

Page 15